RAM CHANDRA ARYA Versus MAN SINGH

1967 (12) TMI 63 - SUPREME COURT

Civil Appeal No. 379 of 1965. - Dated:- 8-12-1967 - BHARGAVA, VISHISHTHA, SHAH, J.C. AND RAMASWAMI, V., JJ. J. P. Goyal and Sobhagmal fain, for the appellant. S. P. Sinha and M. 1. Khowaja, for the respondents. JUDGEMENT Bhargava, J. This appeal arises out of a suit for possession of 11th January, 1939, one Ram Das filed suit No. 354 of 1939 against Ram Lal in the Court of Judge, Small Causes, for recovery of a sum of ₹ 144/-. That suit was later transferred to the court of the Munsif and .....

, 1945, he died leaving no heir. Ram Lal was a subject of the Maharaja of Jaipur and, on Ram Lal's death, the servants of the Maharaja took possession of the house on 20th September, 1945. Thereupon, suit No. 552 of 1946 was filed by Prabhu Dayal,the father of the appellant, for possession of the house on 10th July, 1946. The suit was contested on the ground that Ram Lal was a lunatic and the earlier suit No. 354 of 1939 had been instituted against Ram Lal without appointment of a guardian-a .....

med the decisions of the lower Courts and, consequently, the appellant has now come up to this Court by special leave. As has been mentioned above, the suit was dismissed by the trial Court and that decision has been upheld by the first and the second appellate Courts on the ground that the decree against Ram Lal -was a nullity and the sale held in execution of that decree was, therefore, void. It appears from *he judgment of the High Court that, in that Court, no attempt was made on behalf. of .....

that, if a decree is passed against a minor without appointment of a guardian, the decree is a nullity and is void and not merely voidable. This principle becomes applicable to the case of a lunatic in view of r. 15 of 0. 32 of the Code of Civil Procedure, so That the decree obtained against Ram Lal was a decree which has to be treated as without jurisdiction and void. In these circum- stances, the sale held in execution of that decree must also be held to be void. Learned counsel appearing on b .....

question arose whether the auction-purchaser was entitled to a con- firmation of the sale under 0. 21, r. 92, C.P.C. The Court held that the sale should be confirmed. The law makes ample provision for the protection of the interests of the judgment-debtor, when his property is sold in execution. He can file an application for setting aside the sale under the provisions of 0. 21, rr. 89 and 90, C.P.C. If no such application was made, or when such an application was made and disallowed, the Court .....

being a nullity, has to be treated as non- est and, consequently, the sale, when he-Id, was void ab initio. In such a case, there is no question of any party having to resort to the provisions of rr. 89 and 90 of 0. 21, C.P.C. to have the sale set aside. Any claim based on a void sale can be resisted without having that sale, set aside. The decision of this Court in that case itself brings out this distinction by stating: "It is to be noted however that there may be cases in which, apart f .....

of rr. 89 to 91, C.P.C. In the present case, as we have held, the decree passed against Ram Lal was void and has to be treated as non-existent and consequently, the sale must be held 1 to be a nullity. Learned counsel also referred us to the decision of the Privy Council in Khiarajmal and Others v. Daim and Others(1), but even that case, in our opinion, does not help the appellant. In that case, the equity of redemption in respect of certain property was sold in execution of decrees without serv .....

d be a nullity and might be disregarded without any proceeding to set them aside." Proceeding further and dealing with the case of one of the mortgagors, it was held that, because his interest in the property had been ignored altogether and there was no decree against him, the Court had no jurisdiction to sell his share. The portion of the judgment, on which learned counsel relied, related to the remarks made by the Privy Council when dealing with an earlier decision in Malkarjun v. Narhari .....